Politics & Policy

Your Speech or Your Life!

Why does McCain get a pass on stifling the pro-life message in the service of suppressing free speech … for the benefit of pro-abortion Democrats?

As a Giuliani supporter, it hasn’t been much fun to watch my fellow conservatives tear into my guy over abortion. Such was the ardor that the 30-year-old Hyde amendment was invoked to stoke fears that the mayor would reverse its long-standing ban on federal-funding for abortion — notwithstanding that he is the GOP candidate most credible on what used to be the plinth of conservative theology: shrinking government and its role in our lives.

Giuliani is committed to leaving the Hyde amendment intact. More significantly, he has pledged to appoint judges in the mold of Antonin Scalia, Clarence Thomas, Sam Alito, and John Roberts. As a practical matter, a president cannot do more than that to support life — or, for that matter, to affect many issues conservatives care about.

Still, the scrutiny of the pro-life movement has been understandably intense, and the mayor has not been the only candidate under the microscope. Fred Thompson, who had a relatively strong record on life while serving as a senator, was lashed over consulting work his law firm did on behalf of a pro-choice group nearly 20 years ago. It doesn’t appear that Thompson did much, if anything, to lobby the Bush-41 administration to ease the “gag rule” against abortion-counseling at federally-funded clinics. Still, that didn’t prevent a spike of pro-life angst that knocked the candidate off his stride just as he was moving off the starting block.

This is as it should be. In the conservative firmament, the centrality of life’s sanctity endures. But it’s got me wondering: There is only one candidate on the GOP side who has, in just the last few months and years, vigorously worked to defeat pro-life forces and frustrate the only policies that have a chance to reduce abortions; yet, conservatives have given him a total pass.

His name is John McCain.

Senator McCain has engaged in a years-long campaign against Wisconsin Right to Life, an organization dedicated to advancing the pro-life agenda. Conservatives, one might have thought, would be stunned by a grand-slam only the modern Left could love: McCain has (a) urged the courts to judicially legislate a (b) suppression of free-speech rights (c) against an anti-abortion group which was (d) trying to urge the confirmation of conservative Bush judicial nominees.

And the cherry on top? McCain’s exertions were singularly designed to protect one of the Senate’s most liberal incumbents: Russ Feingold (D., Wis.), McCain’s soul-mate in the evisceration of First Amendment rights (also known as the McCain/Feingold “campaign finance reform” law). A pro-abortion stalwart who scores a whopping 93 percent on NARAL’s pro-choice report card, Feingold has also opposed the Patriot Act and every sensible national security measure taken after 9/11 … in addition to seeking President Bush’s censure over the effort to penetrate al-Qaeda communications during wartime.

McCain believes political speech is bad for democracy — as long, of course, as there is an exemption for mainstream media speech that swoons over “mavericks” who break with conservatives over immigration, global warming, the Bush tax cuts, etc. The Senator, however, is astute enough to know his assault on the First Amendment is wildly unpopular with the people whose nomination he seeks. So, to put their minds at ease, he told National Review’s Ramesh Ponnuru last year that he was satisfied by President Bush’s 2002 decision to sign McCain/Feingold into law. He would, he assured, seek no further “legislation” to ban political speech.

Turns out the captain of the “Straight-Talk Express” left out one itsy-bitsy detail. Even as he spoke those words, he was — as an influential senator — exhorting the United States Supreme Court to tack a sweeping judicial ban onto the already extensive McCain/Feingold restrictions.

The target was Wisconsin Right to Life (WRTL). This pro-life group well understood that when it comes to abortion, the action is in the federal courts. In 2004, the president was working to put his pro-life stamp on those courts by appointing conservative judges. He was being blocked by Democrats, who, though in the minority, were capitalizing on the chamber’s procedural rules to filibuster nominees for the all-important federal appellate courts. One of those Democrats was none other than Sen. Feingold. So WRTL decided to run issue ads, urging Feingold to do his constitutional duty and give the Bush nominees an up-or-down vote.

Feingold, however, was up for reelection. In the Alice in Wonderland world of McCain/Feingold, that meant it was ostensibly against the law for an interest group in our democracy to utter his name in “electioneering statements” on a matter of vital public policy 30 days before a primary and 60 days before a general election — that is, in the 90 days when public attention is at its height and political speech matters most. As the First Amendment ensures that “Congress shall make no law … abridging the freedom of speech,” WRTL had this crazy notion that McCain/Feingold violated its fundamental rights.

Obviously, McCain is all for “straight talk” as long as it is he — or the New York Times — doing the talking. The last thing we need, though, is straight-talk from a pro-life group exerting pressure on a pro-abortion incumbent. So the maverick swung into action, pursuing WRTL in the courts for three years. Just as he was preparing for his presidential run — and telling conservatives he certainly didn’t support any further campaign finance legislation — he was doing exactly what the Left always does when its unpopular positions hit the democratic wall of the ballot box: namely, asking the courts to do his bidding.

Indicative of the effort is the amicus brief McCain filed in the Supreme Court in 2007. Here is a representative sample of what the senator found so outrageous:

All of WRTL’s ads denounced a “group of Senators” for filibustering judicial nominees and “causing gridlock” …; two of the ads emphasized that the Senators were “backing up some of our courts to a state of emergency[.]” … The ads then urged the audience to contact Senator Feingold — then a candidate for federal office — and Senator [Herb] Kohl [another Wisconsin Democrat] to tell them to oppose the filibusters. … It was public knowledge that Feingold was one of the “group of Senators” to whom the ads referred. Indeed, WRTL itself had publicized Senator Feingold’s involvement in the filibusters (an important issue in the election) and called for his defeat on that ground. Although the ads asked the audience to contact Senators Feingold and Kohl, they provided no contact information for them, instead directing viewers to a website criticizing them for their role in the filibusters. WRTL sought to run its ads immediately before the 2004 election (while Congress was in recess and no vote on the filibuster was imminent) and did not run them after the election (when the filibuster controversy came to a head)….

Can you imagine? A group of Feingold’s pro-life constituents, opposed to his policies, had the temerity to urge other constituents to contact him, while he was very busy running for another six years as their representative. And they had the audacity to suggest that Feingold should stop filibustering eminently qualified judges — right before an election. I mean, what on earth is America coming too?

Fortunately, McCain lost. Despite the best efforts of Feingold and many of his fellow Democrats, by 2007, President Bush had managed to get two of his appointees on the Supreme Court. The tribunal thus shifted, becoming less hospitable to McCain/Feingold than it had been in 2003 when, remarkably, the statute’s gutting of political speech was tenuously upheld. But even in ruling against McCain, the Court left open the door to reconsidering the issue — and that’s why a happy result is not a happy ending.

For in the interim, while Republicans still controlled the Senate in 2006, McCain led a bipartisan “Gang of 14” which, at the eleventh hour, prevented the Senate from repealing its filibuster rule in the confirmation context. As a result, many of the conservative Bush appointees never got confirmed.

Worse still, in the subsequent midterm election, control of the Senate shifted to the Democrats — with whom McCain constantly brags of his willingness to collaborate. With the Judiciary Committee now in Democrat hands, Bush judicial nominations have stalled. Vacancies on the top courts mount. Largely thanks to McCain, the Left now has its ideal scenario: the ability to drag its feet until after the 2008 election, after which a President Hillary Clinton or Barack Obama can fill those openings and dramatically move the federal courts in the direction of abortion rights and sundry “progressive” pieties.

This is not something that happened 10, 20 or 30 years ago. It reflects who the Senator is today. For another Republican presidential candidate, such a performance would be disqualifying. Why has McCain gotten away with it?

Andrew C. McCarthy is an NRO contributor. The views expressed above are his own and do not necessarily reflect the views of any candidate or organization.

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